Pre-Nups – Not Quite There Yet
A recent case involving a Katrin Radmacher, a German heiress was widely reported in the national press as changing the way pre-nuptial agreements would be treated in the future. However, the ruling was not quite as dramatic as was made out.
The traditional view of the courts has always been that ‘pre-nups’ are little more than persuasive. This is largely because, throughout the marriage, circumstances change (children come along, careers are forged or sacrificed) and it is often not in the interests of justice to force divorcing couples to be bound by an agreement made many years earlier.
The judge in the Radmacher recent case did however make it clear that the law regarding pre-nups needs to be brought into line with that of most other countries, where they are enforceable as contracts. He was of the view that ‘autonomous adults’ have the right to govern their future financial relationship by agreement.
He also commented that the presence of a pre-nup would assist in avoiding the stress, anxieties and expense which often accompany the negotiation of financial settlements on divorce.
Looking at the circumstances, however, the main issue was that both of the parties to the pre-nup were financially astute people. Unusually it was the husband who was seeking to overturn the pre-nup and claim £6m from his wife. He had been a successful banker and although he did not take professional advice before entering into the agreement, he had every opportunity to do so, and the judge felt that he fully understood its effect. He had not asked his ex-wife for details of her finances. Crucially, it was the husband’s choice to accept the pre-nup he was offered rather than negotiate.
Says Mike Sanders, DFA Law’s head of Family Law: “We may expect legislation in due course to make indisputable the validity of pre-nups, but there currently is no indication when such legislation is likely to be enacted. This ruling is a big step towards legitimising pre-nups, but we are not quite there yet. Meanwhile, it is essential that a pre-nup is entered into with full disclosure and with the benefit of professional advice on both sides.”